Representatives from the Department of Justice and FCC were low-key about what …

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"Good morning, this hearing will come to order, and we welcome all. I notice that there are a few people in the room," declared Senator Jay Rockefeller (D-WV). "We're here to discuss consumers—they're the good guys, right? The people we try to protect."

The Senator's comment about a "few people in the room" was sarcastic, of course. The hall was filled because the subject was, once again, the proposed merger of Comcast and NBC Universal—this one held on Thursday under the auspices of the Senate Commerce, Science, and Transportation Committee.

The union—in which Comcast would control 51 percent of the new media entity and present owner General Electric with the rest—has already received at least four contentious Capitol Hill sessions, the most famous being Senator Al Franken's (D-MN) dressing down of Comcast and NBC in February. This latest was relatively low key. But for Ars readers who want to follow the story, it was useful because both the Chair of the Federal Communications and a representative from the Department of Justice outlined how their respective agencies will each evaluate the deal.

DOJ

As Assistant Attorney General Christine A. Varney explained, step one in these big mergers is for the parties to file an outline of their plans with the Federal Trade Commission and the Department of Justice under the Hart-Scott Rodino Act. Most are reviewed for anti-trust problems in 30 days. But "some transactions require a closer look for us to make an informed judgment about their likely competitive effects," Varney explained. And so the DOJ makes a "second request" for more information.

During the second request period, the DOJ asks for more documents and data, interviews competitors with and customers of the merger seekers, and consults with economists and lawyers on the matter. The process is strictly confidential, Varney added. "Customers and industry participants with views about a transaction should know that the law places significant, meaningful restrictions on our ability to disseminate information provided to us during our merger investigations," she warned.

In fact, the DOJ can't even share confidential information with the FCC. But the merger applicants often sign waivers allowing both sides to view the same documents.

If after the usual period of several months the DOJ decides that the venture doesn't violate antitrust laws, it says so. If not, the department's attorneys have to file a lawsuit asking a Federal court to stop the transaction. At that point, merger applicants often try to negotiate a settlement that will satisfy the DOJ's concerns while allowing them to consummate the union.

"Accordingly, our investigations are conducted not only with an eye toward litigating, but also in light of the reality that we often obtain a solution that protects competition without resort to a contested litigation," Varney told the Senate.

FCC

The Federal Communications Commission will also review the Comcast/NBC merger, but using a different set of yardsticks, the agency's Chair Julius Genachowski told the Senate, as per section 310(d) of the Communications Act:

"No construction permit or station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby."

How will the FCC define the "public interest, convenience, and necessity" in this case? "Specifically with respect to television programming," Genachowski explained, "the Commission’s goals include a vibrant and healthy marketplace, guided by the well-settled Communications Act values of competition, diversity, localism, and a deep respect for the First Amendment."

If that laundry list of criteria sounds a little vague, at least the FCC will conduct a much more open investigation of this proposed merger than the Justice Department. The Commission invites public comments on the question and its staff investigates the proposal.

This has its up and down sides. The union of Sirius and XM satellite radio was a case in agency contrast. The FCC launched a year-and-a-half proceeding on whether to allow the two services to merge, during which hundreds of companies, public interest groups, and trade associations noisily weighed in on the matter. Meanwhile the DOJ ran a quiet investigation—then, with almost no fanfare, published its analysis of the impact of the merger on its website. The FCC eventually gave Sirius XM its blessing, but the process was quite an ordeal.

Finally, when the Chair of the FCC thinks he's got three out of five Commissioner votes for the proposed deal, he instructs the staff to write up a draft order offering conclusions.

Longer than warranted

In the case of this proposed merger, Genachowski seemed to have the Sirius-XM and AT&T-BellSouth merger applications in mind as he spoke to the Senate.

"In the past, some have expressed concerns about whether FCC review of some transactions has taken longer than the circumstances warranted," he acknowledged. "Some have also questioned in particular cases whether the Commission’s processes were sufficiently open and reflected a sufficiently thorough analysis of the relevant data and issues."

Genachowski promised the Senate that an invitation for public comments on the Comcast/NBC deal will be issued "soon." What does he think of the proposed merger? "An important part of our responsibility at the Commission is to ensure that communications industry transactions do not enable firms to frustrate innovation or raise prices ultimately paid by consumers," the FCC's boss declared.

That was as much opinion as the senators got from the Commission this time around. As for the DOJ's Varney, she promised to be as "transparent as possible," within "the confines of our confidentiality obligations." Those are the rules of the game, which it appears will begin quite soon.

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Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar